Basic structure doctrine

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.[1] Key among these "basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution.[1][2][3] The doctrine thus forms the basis of a power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution.The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. Thus it gives extra power to court to review and strike down any constitutinal amendmentts and act enacted by the Parliament.

The Supreme Court's initial position on constitutional amendments was that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote,

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the preview of Article 368?

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala.[4] Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.[1] However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.[5]

Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.[3]

The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".

Contents

The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote,

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?"[6]

Supreme Court declared that the basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament.[7] The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as "basic" are listed below:

The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In Shankari Prasad Singh Deo v. Union of India (AIR. 1951 SC 458), the Supreme Court unanimously held, "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. In the context of article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368. In Sajjan Singh v. State of Rajasthan (case citation: 1965 AIR 845, 1965 SCR (1) 933), by a majority of 3-2, the Supreme Court held, "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution. It would be unreasonable to hold that the word "Law" in article 13 (2) takes in Constitution Amendment Acts passed under article 368."[8] In both cases, the power to amend the rights had been upheld on the basis of Article 368.

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab.[8] A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III. Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case. It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking away any of the Fundamental Rights.[8] Chief Justice Koka Subba Rao writing for the majority held that:

A law to amend the constitution is a law for the purposes of Article 13.

Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.

Article 368 does not contain a power to amend the constitution but only a procedure.

The power to amend comes from the normal legislative power of Parliament.

Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in Kesavananda Bharati v. State of Kerala (case citation: AIR 1973 SC 1461). The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".[9] The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:

All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.

Ten judges held that Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.

Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).

Seven judges held (six judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity".

Seven judges held (two judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368".

Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

Golak Nath's case is over-ruled.

Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.

Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.

The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" is invalid.

The Court reaffirmed and applied the basic structure doctrine in Indira Nehru Gandhi v. Raj Narain, popularly known as Election case. The constitutionality of Article 329A, which had been inserted by the 39th Amendment in 1975 was challenged in this case.[8] Shortly after the imposition of the Emergency, a bench of thirteen judges was hastily assembled to hear the case. Presided over by Chief Justice Ajit Nath Ray, the court had to determine the degree to which amendments were restricted by the basic structure theory. Ray, who was among the dissenters in the Kesavananda Bharati case, had been promoted to Chief Justice of India on 26 April 1973, superseding three senior Judges, Shelat, Grover and Hegde (all in the majority in the same case), which was unprecedented in Indian legal history. On November 10 and 11, the team of civil libertarian barristers, led by Nanabhoy Palkhivala, argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of 12 November, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.

The 39th Amendment attempted, among other provisions, to legitimize the election of Indira Gandhi in 1971. Article 329A put the elections of the Prime Minister and Lok Sabha Speaker outside the purview of the judiciary and provided for determination of disputes concerning their elections by an authority to be set up by a Parliamentary law. The Supreme Court struck down clauses (4) and (5) of the article 329A, which made the existing election law inapplicable to the Prime Minister's and Speaker's election, and declared the pending proceedings in respect of such elections null and void.[8]

Constitutional lawyer A. G. Noorani notes[12] that the doctrine has "now spread far and wide beyond its frontiers.", but that the eventual attribution to Dietrich Conrad is absent, who propounded the arguments in a lecture to the law faculty in the Banaras Hindu University. The argument, Noorani narrates made way to M K Nambyar who read the excerpt out in Golaknath.

Implied Limitations of the Amending Power

"Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper?
"Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period - discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner."

The basic structure doctrine was further clarified in Minerva Mills v. Union of India. The 42nd Amendment had been enacted by the government of Indira Gandhi in response to the Kesavananda Bharati judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nanabhoy Palkhivala successfully moved the Supreme Court to declare sections 4 and 55 of the 42nd Amendment as unconstitutional.[13] The constitutionality of sections 4 and 55 of the 42nd Amendment were challenged in this case, when Charan Singh was caretaker Prime Minister. Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals articulated in Part III. Section 55 prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on the constituent power of Parliament to amend by way of definition, variation or repeal the provisions of the Constitution. On 31 July 1980, when Indira Gandhi was back in power, the Supreme Court declared sections 4 & 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution.[13][14] As had been previously held through the basic structure doctrine in the Kesavananda case, the Court ruled that Parliament could not by amending the constitution convert limited power into an unlimited power (as it had purported to do by the 42nd amendment).

Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.[15]

The ruling was widely welcomed in India, and Gandhi did not challenge the verdict.[16] In the judgement on Section 4, Chandrachud wrote:

Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagorewanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.[15]

The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).[18]

In Malaysia, the basic features doctrine was initially found to be inapplicable by the Federal Court in Phang Chin Hock v. Public Prosecutor.[19] The Court remarked that the Indian Constitution was not drafted by "mere mortals", while the same could not be said for the Malaysian Constitution.[20] The Indian Constitution was drafted by a constituent assembly representative of the Indian people in territorial, racial and community terms,[21] while both the Malaysian and Singapore Constitutions were enacted by ordinary legislatures.

The basic structure doctrine was first cited with approval by the Federal Court in obiter dicta in Sivarasa Rasiah v. Badan Peguam Malaysia,[22] before ultimately being applied by the same court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano'r Case [23] and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & 2 O'rs & 2 Other Cases.[24] In those cases, the Federal Court held that the vesting of the judicial power of the Federation in the civil courts formed part of the basic structure of the Constitution, and could not be removed even by constitutional amendment.

The High Court of Singapore denied the application of the basic features doctrine in Singapore in Teo Soh Lung v. Minister for Home Affairs. Justice Frederick Arthur Chua held that the doctrine was not applicable to the Singapore Constitution: "Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament's power to amend our Constitution is limited in the same way as the Indian Parliament's power to amend the Indian Constitution."[25]

In December 2017, the Ugandan parliament passed a Constitutional Amendment which removed age limit of 75 years for the President and Chairpersons of the Local Council. The President Yoweri Museveni, who has been President of Uganda since 1986, signed the amendment into law in January 2018, aged 74 years. Several opposition leaders and the Uganda Law Society, challenged the constitutionality of the amendment before the Constitutional Court, which (majority) upheld the validity of the amendment. Taking note of the judgments in Kesavananda Bharati v. State of Kerala, AIR 1973 SC and Minerva Mills v. Union of India, AIR 1980 SC 1789, the Supreme Court of Uganda in Mabirizi Kiwanuka & ors. v. Attorney General, [2019] UGSC 6, unanimously upheld the Constitutional Court (majority) finding.

^NOORANI, A. G. (Apr 28 – May 11, 2001). "Behind the 'basic structure' doctrine : On India's debt to a German jurist, Professor Dietrich Conrad". Frontline. the Hindu group. Retrieved 22 March 2014. THERE is, sadly, little acknowledgment in India of that debt we owe to a distinguished German jurist and a scholar steeped in other disciplines beyond the confines of law - Professor Dietrich Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany....It was no mere coincidence that a German jurist had thought of implied limitations on the amending power. Article 79(3) of the Basic Law of the Federal Republic of Germany, adopted on May 8, 1949, six months before the drafting of India's Constitution ended, bars explicitly amendments to provisions concerning the federal structure and to "the basic principles laid down in Articles 1 and 20 (on human rights and the "democratic and social" set-up). The Germans learnt from the bitter experience of the Nazi era. The framers of the Constitution of India refused to look beyond the Commonwealth countries and the United States....Prof. Conrad aptly remarked that "in this free trade of constitutional ideas the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the court"; namely, public interest litigation and "the basic structure doctrine".